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Alimony and Maintenance
Alimony, also referred to as “spousal support,” consists of financial allowance paid by one spouse to the other, as ordered by the court. This can be paid while the parties are legally separated, in the process of getting divorced, or after they are divorced.
Alimony Be Awarded to Either Spouse and in Certain Circumstances
Alimony may be awarded temporarily while a divorce case is pending or for an extended period of time after the divorce decree has been granted. A court may order the husband or the wife to pay alimony.
Under Utah law, the court may consider the following and other factors when deciding whether to award alimony. To receive alimony the spouse petitioning for alimony will want to meet the following factors while the spouse opposing alimony will want to show that the petitioning spouse has not met these factors sufficiently:
- The financial need of the spouse who wants to receive alimony. This includes the petitioning spouse’s monthly debts and obligations, and his or her ability to pay these debts. The spouse opposing alimony may want to challenge the debts as to which are necessary and which may be for an unnecessarily enhanced lifestyle or other non-essentials.
- The petitioning spouse’s earning capacity or ability to produce income. This includes past employment history, ability or inability to work and income received from all sources, including passive income. The spouse opposing alimony may want to challenge the petitioning spouse’s stated ability to earn income in situations when such spouse has had certain job, vocational, or professional training or education that may have been downplayed by the petitioning spouse.
- The ability of the paying spouse to provide support. This consists of calculating the paying spouse’s income and subtracting his or her legitimate debts and obligations. The petitioning spouse may want to challenge debts claimed that were incurred just to defeat alimony.
- The length of the marriage. Although some take the view that the longer the marriage was, the stronger the case for alimony, this is certainly not always the case. This could cut both ways. Certainly the spouse opposing alimony may argue of undiscovered fraud or infidelity as grounds for having not known to leave the marriage sooner. Likewise, the spouse opposing alimony may be able to demonstrate physical or mental abuse by the petitioning spouse that kept the paying spouse mentally tied to the relationship.
- The standard of life that the petitioning spouse enjoyed during the marriage or at the time of separation. Usually, the court may consider the parties’ standard of living at the time of separation, but in short marriages with no children, the court may consider what the standard of living was when the marriage began. Sometimes, the court will try to equalize the parties’ standards of living; however, the spouse opposing alimony may argue against this in several circumstances, such as, where the other spouse committed fraud, abuse, waste of marital resources against the will and actions of the other spouse.
- Whether the petitioning spouse has custody of minor children from the marriage who need support. The spouse opposing alimony may want to work hard toward achieving joint shared physical custody of the children for the sake of having healthy time with the children as well as to avoid the unfair imposition of alimony.
- Whether the petitioning spouse worked in a business owned or operated by the other spouse. The spouse opposing alimony may want to contest time put in by the petitioning spouse if the work performed by said petitioning spouse harmed the business or did not benefit the business. Often, a successful spouse will let a less ambitious or less competent spouse work in his or her business to boost the other spouse’s moral when, in fact, the less ambitious spouse really did not contribute to the business.
- Whether the petitioning spouse contributed to increase the paying spouse’s income capability or work skills by paying for his or her education or by allowing the educated spouse to attend school during the marriage. The spouse opposing alimony may want to contest this claim by showing that he or she actually had other income before the marriage or income separately earned to pay for his or her education. The spouse opposing alimony may also want to contest this claim by showing that his or her time attending schooling or training did not detract at all or significantly from his or her contribution to the marriage. That is, perhaps the spouse took care of the children of the marriage or of the other spouse’s children while attending school, thus, saving the couple from childcare costs and having benefited the children.
- Whether one spouse was at fault so as to trigger the separation or divorce proceedings. “Fault” may consist of conduct during the marriage that substantially contributed to the breakup of the marriage, such as:
- One spouse having been unfaithful, by engaging in sexual relations with another person;
- One spouse having knowingly and intentionally caused or attempted to cause physical harm to the other spouse or minor children;
- One spouse having knowingly and intentionally caused the other party or minor children to reasonably fear life-threatening harm; or
- One spouse having substantially undermined the financial stability of the other spouse or the minor children.
Termination of Alimony
Generally, if alimony is ordered, it may be paid for a certain amount of time, as agreed by the parties or imposed by the court, but not for a time period that exceeds the length of the marriage unless there are special circumstances warranting paying alimony for such an extended time period.
Alimony may be terminated under certain circumstances before the time originally imposed by the court. Alimony automatically terminates if the receiving spouse remarries or dies. Alimony may also be terminated if the receiving spouse is found to be living with another partner. The paying spouse may be able to stop paying once he or she proves the cohabitation or the receiving spouse just concedes to it.
Either party may file a Petition to Modify Alimony with the court. To be granted an order modifying alimony the party seeking the change must demonstrate that there has been a substantial and material change in circumstances that was not foreseen at the time of divorce. An example circumstances would be if the receiving spouse has had a job promotion which increased his or her income. Nevertheless, normally, the receiving spouse may not obtain an increase in the alimony amount because he or she has a change in his or her needs which did not exist at the time the decree was entered. Only in unique, special situations may the receiving spouse successfully petition for such an increase.
Enforcing Alimony and Seeking Contempt Sanctions
If the party ordered to pay alimony fails to comply with the order, the receiving spouse may file a Motion to Enforce Domestic Order (also called a Motion for Order to Show Cause). In this motion, the receiving spouse asks the court to enforce the alimony order. The court may issue a judgment for past due alimony, including pre- and post-judgment interest.
The receiving spouse may also seek contempt against the other spouse who did not pay by showing that the paying spouse knew of the order but willfully did not pay. In that case, the court may also find the non-paying spouse in contempt of court and order him or her to pay a fine of up to $1,000 or even to serve up to thirty (30) days in jail.
Registering a Foreign Order
If a spouse has an order for alimony, child support, or other issues regarding domestic matters from another state or the United States federal government, it is a “foreign order” that may be registered with a Utah Court under such laws as Utah Foreign Judgment Act, the Utah Uniform Child Custody and Enforcement Act (as to child custody) and Uniform Interstate Family Support Act (as to child support or alimony).
Orders from foreign countries outside the United States may be registered but under other legal principals. In circumstances where a foreign order from another country needs to be registered for recognition in Utah, one must demonstrate such factors as the presence of a treaty between the countries or under public policy arguments where the court may exercise of judicial discretion. A separate action would need to be filed in a Utah court to seek recognition and enforcement of another’s country’s domestic order.
Before a Utah court can enforce or modify the foreign order, it first must be registered in Utah.
Why Trupiano Law Is Successful
- Aggressive — Although attorney Kim Trupiano works to find resolutions where they can be obtained, she prepares for trial, not for settlement. Kim exploits any hole in the other side’s case to gain advantage and maximize the positive outcomes for her clients.
- Thorough — Kim’s attention to detail is essential to challenging evidence in court proceedings and producing a strong evidentiary case for her client, including strongly-backed and detailed motions for relief.
- Compassionate — She eases client concerns by taking the time to explain clients’ rights, explore their options and keep them updated about progress in the case.
- Creative — Kim does her homework to raise new defense and affirmative relief theories, or to negotiate alternative resolutions and outcomes.